Presentation By
Milena Macias, Esq.
CCFJ Director for Legislative Affairs
Milena Macias, Esq.
Published February 12, 2021
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As of 2018, Florida with
48,250 community associations, has the highest amount of
community associations in the United States. (available at
https://ipropertymanagement.com/research/hoa-statistics).
Nearly 1,000 people move to Florida each and every day. The
migration comes from all over the United States from the north,
northeast, midwest, and the west coast. Many new Floridians are
retirees and many are young working age families. (available at
https://www.dmvflorida.org/moving-to-florida.)
The majority of the people living in (and moving to) Florida are
residing in a community association.
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The ultimate goal in community
associations is to ensure uniform, fairness and equality for
all. However, some lobbying groups (including attorneys
representing associations) operate to the detriment of the unit
or parcel owners in community associations. And, as our Governor
Ron DeSantis states: “We are all supposed to be equal before the
law, but we have a separate and distinct ruling class, and that
is wrong. (https://www.brainyquote.com/quotes/ron_desantis_767115)
Floridians in community associations entrust their government to
hear and respond to their cries, enact laws on community
association governance ensuring uniform, fair and equal
treatment, and vote accordingly. In so doing, we rely on:
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DBPR. The Department of
Business and Professional Regulation is the agency charged with
licensing and regulating businesses and professionals in the
State of Florida. The mission of the DBPR is to license
efficiently and regulate fairly. and we strive to meet this goal
in our day-to-day operation. The DBPR is structured according to
the requirements of Section 20.165, F.S. (available at
http://myfloridalicense.custhelp.com)
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Ombudsman. The current
Florida ombudsman is Spencer Henning. The mission of the Office
of the Condominium Ombudsman is to improve the quality of life
for Florida condominium owners through prompt, professional, and
courteous service as a neutral, informative and accessible
resource. (available at
https://www.flgov.com/?s=condo+Ombudsman&x=0&y=0 )
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Condominiums. Chapter
718, F.S. “The Condominium Act”, is a chapter of law that
governs condominiums in the State of Florida. The Condominium
Act should be read in conjunction with Chapters 61B-15 through
25, 45 and 50, Florida Administrative Code. The administrative
rules are promulgated by the Division of Florida Condominiums,
Timeshares, and Mobile Homes to interpret, enforce, and
implement Chapter 718, Florida Statutes. (available at
http://www.myfloridalicense.com/dbpr/lsc/documents/statutes/Ch718Printed.pdf)
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Cooperatives. Chapter
719, F.S. “The Cooperative Act”, is a chapter of law that
governs cooperatives in the State of Florida. The Cooperative
Act should be read in conjunction with Chapters 61B-75 through
79, Florida Administrative Code. These administrative rules are
promulgated by the Division of Florida Condominiums,
Community associations in Florida must be fair, have
consistent rules
and ensure transparency to its members.
How can we make that happen?
The vagueness in Chapter 720.306 F.S. (HOAs) election
procedures needs to be clarified:
The use of an HOA’s nominating committees” – may disenfranchises
possible candidates, so that only party-line candidates will be on
the ballot mailed out to the membership. This promotes rigging of
elections and circumvents the provision that "a member may nominate
himself or herself as a candidate for the board at a meeting where
the election is to be held." (s. 720.306.(9).
Analysis: s. 720.306 F.S. should be
amended to comply with 718.111(2)(d), F.S. which has complete
eligibility clauses (i.e., that prevent convicted murderers from
serving as board president. )
There is no necessity to reinvent the “wheel” because Chapter F.S.,
718.111(2)(d) has proven language, specific rules and regulations
and case law back up these election provisions.
(
BILL PROPOSAL )
Moreover, associations should not be allowed to opt out of the
statutory election process because it assists a sitting board to
keep incumbents in office and allows the board to make changes in
election process by voting to change bylaws.
Amend Chapter 720, F.S. so the use of “liens” masquerading as
“fines” (designed to disengage potential candidates for the board )
is addressed.
It appears that many HOA boards institute fines
against members a few months prior to election, in the amounts of
$1,000 or more (with fines ) decided by the fining committee.
However, many boards use these fines as a way to lien properties to
disengage potential candidates forcing a potential candidate either
have to pay a fine (which they might not even owe) or not allow
their candidacy to proceed.
At present, 720.305, F.S. allows that an “association may levy
reasonable fines. … [and that a] fine may be levied by the board for
each day of a continuing violation, with a single notice and
opportunity for hearing, except that the fine may not exceed $1,000
in the aggregate unless otherwise provided in the governing
documents. A fine of less than $1,000 may not become a lien against
a parcel. …[and] (b) A fine or suspension levied by the board of
administration may not be imposed unless the board first provides at
least 14 days’ notice to the parcel owner and, if applicable, any
occupant, licensee, or invitee of the parcel owner, sought to be
fined or suspended and an opportunity for a hearing before a
committee of at least three members … If a member is more than 90
days delinquent in paying any fee, fine, or other monetary
obligation due to the association, the association may suspend the
rights of the member, or the member’s tenant, guest, or invitee, to
use common areas and facilities until the fee, fine, or other
monetary obligation is paid in full. This subsection does not apply
to that portion of common areas used to provide access or utility
services to the parcel. A suspension may not prohibit an owner or
tenant of a parcel from having vehicular and pedestrian ingress to
and egress from the parcel, including, but not limited to, the right
to park. The notice and hearing requirements under subsection (2) do
not apply to a suspension imposed under this subsection. …(4) An
association may suspend the voting rights of a parcel or member for
the nonpayment of any fee, fine, or other monetary obligation due to
the association that is more than 90 days delinquent. A voting
interest or consent right allocated to a parcel or member which has
been suspended by the association shall be subtracted from the total
number of voting interests in the association, which shall be
reduced by the number of suspended voting interests when calculating
the total percentage or number of all voting interests available to
take or approve any action, and the suspended voting interests shall
not be considered for any purpose, including, but not limited to,
the percentage or number of voting interests necessary to constitute
a quorum, the percentage or number of voting interests required to
conduct an election, or the percentage or number of voting interests
required to approve an action under this chapter or pursuant to the
governing documents. The notice and hearing requirements under
subsection (2) do not apply to a suspension imposed under this
subsection. The suspension ends upon full payment of all obligations
currently due or overdue to the association.
Analysis: Fines should not be liens and F.S. 720 should be
consistent with F.S. 718 so that a fine may not become a lien
against a unit.
F.S. 718.303(3), which governs condominium associations sets forth
that: The association may levy reasonable fines for the failure of
the owner of the unit or its occupant, licensee, or invitee to
comply with any provision of the declaration, the association
bylaws, or reasonable rules of the association. A fine may not
become a lien against a unit.
F.S. 720.305(2) which governs homeowners associations sets forth in
relevant part that: The association may levy reasonable fines of up
to $100 per violation against any member or any member’s tenant,
guest, or invitee for the failure of the owner of the parcel or its
occupant, licensee, or invitee to comply with any provision of the
declaration, the association bylaws, or reasonable rules of the
association. A fine may be levied for each day of a continuing
violation, with a single notice and opportunity for hearing, except
that the fine may not exceed $1,000 in the aggregate unless
otherwise provided in the governing documents. A fine of less than
$1,000 may not become a lien against a parcel
(
BILL PROPOSAL )
EDUCATION FOR BOARD MEMBERS ON THE ROLES THEY PLAY AS BOARD MEMBERS
IS NOT AN OPTION
EDUCATION IS A NECESSITY:
Mandatory Education for Board Members
(
BILL PROPOSAL )
Allowing new board members to simply sign an “affidavit” stating
that they are aware of the duties and responsibilities imposed on
them, defeats the purpose of education.
However, simply signing an affidavit with no education is a recipe
for disaster and may create financial difficulties by boards who
fail to recognize their responsibilities, leaving CAMs (who are not
authorized to advise on legal matters) and attorneys for the
association to instruct on the relevant provisions (usually to the
benefit of what the board wants). This is dangerous – more than 50%
of the population in Florida are mandated to be in HOAs or COAs, and
an uneducated board may cause financial difficulties and special
assessments and may well bankrupt the association!
All Board members should be required to take a Board
Member Certification Course approved by the DBPR. There are many.
They are free and they are on-line. There is no excuse for failing
to be educated.
EXPAND THE ANTI-SCAM PILOT PROGRAM
(SEE:
The Pilot Program "How To Catch A Thief")
The “Fraud Task Force” pilot program introduced by Julio Robiana,
addresses and identifies alleged misuse of funds by Boards of
Directors and Community Association Managers and we need to be have
this program expanded throughout Florida.
Governor DeSantis has recognized that “[s]tate and local law
enforcement are the primary protectors of the health, safety, and
welfare of the people in the individual states.” (available at
https://www.brainyquote.com/quotes/ron_desantis_767115)
This will allow members of the Florida Department of Law Enforcement
(FDLE)) as well as representatives from the Department of Business
and Professional Regulation (DBPR) and the Office of the Condominium
Ombudsman (OCO) to work together ensuring that any complaints by
affected unit owners can be dealt with in an efficient, fair and
impartial manner.
POLITICAL SIGNS
(
BILL PROPOSAL )
At present, almost all condominium and homeowner associations limit
the display of signs, including “political signs.”
And, while the First Amendment protects “free speech” the reality is
that owners are discovering (to their dismay) that displaying signs
on their property is not allowed due to the rules and regulations
contained in the association governing documents.
These “limitations” imposed by an association limits the protections
afforded under the First Amendment for owners and needs to be
resolved. Owners in condos and HOAs should be allowed to display
their support for the political candidate of their choice in a
respectful manner.
Expand DBPR Ombudsman Duties
We need an expansion of the duties accorded to Ombudsman to make the
changes necessary – including subpoena powers for records and other
materials from associations -- designed to protect owners (whose
home is usually their biggest investment) to provide Florida
investors and owners a greater level of comfort to ensure in the
industry. By so doing, this regulatory oversight will increase
confidence in business with the public, for professional training,
testing and licensing. Moreover, there needs to be greater
delegation and responsibilities allotted to the Ombudsman.
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